Jones and Neuse, Inc. Environmental and Engineering Services October 2, 1992 Mr. James Braddock General Counsel Texas Air Control Board 12124 Park 35 Circle Austin, TX 78753 Dear Mr. Braddock: I hereby request a formal agency opinion regarding the method to determine the Regulation V exemption status of certain vent gas streams pursuant to Rule 115.127. Various industrial facilities in the Houston area have been instructed by the TACB Region 7 staff that sampling the atmospheric exhaust of such vents is not sufficient to determine the exemption status of vent gas streams under Regulation V. According to the TACB Houston staff, sampling must occur upstream of any equipment that may remove air contaminants from the stream prior to being vented to the atmosphere. This appears to fly in the face of the definition of "vent" in Rule 115.010. The streams in question are routed through condensers, scrubbers, absorbers and separators prior to being vented to the atmosphere. It should be pointed out that many such vents are "grandfathered" and pre-date the permit requirements and some vents pre-date the agency itself. Many companies have been operating for over twenty years with the understanding that the vent gas streams from their processes are exempt from Regulation V control based on the vent flow and composition as it exhausts to the atmosphere which is consistent with the TACB definition of "vent". If this is an incorrect conclusion and the TACB wishes to implement an interpretation consistent with the Houston Region 7 staff position, the rule-making process is the appropriate mechanism to insure proper notification and involvement of potentially affected facilities. Your expeditious response on this important issue will be appreciated. If you have any questions, please call me at (713) 450-1882. Sincerely, Jim Myers, P.E., Houston Branch Manager January 20, 1993 Mr. Jim Myers, P.E. Houston Branch Manager Jones and Neuse, Inc. 11811 East Freeway, Suite 450 Houston, TX 77029 Re: Request for Formal Agency Opinion TACB Rule 115.127 Dear Jim: Enclosed please find a Texas Air Control Board (TACB) Legal Opinion regarding the method for determining Regulation V exemption status of vent gas streams pursuant to TACB Rule 115.127. This legal opinion was developed in response to your letter of October 2, 1992. If you have any questions regarding this legal opinion, please do not hesitate to call me. Sincerely, Jim Braddock General Counsel Enclosure cc: Ms. Jodena Henneke, Regional Director, Houston Texas Air Control Board Austin Texas To: Jodena Henneke, Regional Director, Houston From: Kevin R. Jung, staff Attorney, Legal Division Date: January 20, 1993 Subject: Method for determining Regulation V exemption status of vent gas streams pursuant to Rule 115.127 This memorandum is being written in response to questions raised in a letter dated October 2, 1992, from Mr. Jim Myers, P.E., Houston Branch Manager for Jones and Neuse, Inc., to Mr. James Braddock, General Counsel, Texas Air Control Board (TACB). The letter requests a formal agency opinion regarding the method for determining the exemption status of certain vent gas streams pursuant to TACB Rule 115.127. The letter states that the TACB Region 7 Staff has directed several companies to sample for air contaminants upstream of any equipment that may remove air contaminants for purposes of determining the applicability of the exemption. The letter suggests that this instruction conflicts with the definition of "vent" in Board Rule 115.010. The term vent, is defined in Board Rule 115.010 to mean "any duct, stack, chimney, flue, conduit, or other device used to conduct air contaminants into the atmosphere." This term would include any avenue within a process stream that is used ultimately to conduct air contaminants to the atmosphere, whether the device is located before or after any control equipment in the process stream. Thus, the term "vent," when used in the phrase "vent gas stream," as in Board Rule 115.127, could be interpreted to mean a vent gas stream after the point of generation of air contaminants but before any control equipment. If the interpretation of the Rule suggested in Mr. Myers letter were to be applied by the TACB, it would defeat the purpose of the Rule, which was to require sources to implement Reasonably Available Control Technology (RACT) if the uncontrolled emissions from such sources exceeded the emissions limitations found in Regulation V. If the TACB were to allow the regulated community to utilize controlled emission rates to determine the applicability of the exemption in Board Rule 115.127, it would enable industries to install the minimum amount of control technology necessary to meet the Regulation V exemption limitations. Thus, instead of RACT, companies could install "JECT"--Just Enough Control Technology to avoid having to install RACT. This would result in far less emission reductions in nonattainment areas, undermining TACB efforts to bring those areas into attainment status. Air contaminants become air contaminants at the point of generation (or the "source" as defined in Section 382.003(12) of the Texas Clean Air Act), not at the point of emission to the ambient atmosphere. Therefore, only uncontrolled emission rates have been used in the past by the TACB staff to determine whether an increase in emissions had taken place for purposes of Regulation VI permitting requirements concerning the implementation of Best Available control Technology (BACT) (See July 18, 1973 memo from Charles R. Barden, P.E., Executive Secretary, TACB). Since uncontrolled emissions are used for an existing facility's "baseline" in such analysis under Regulation VI, absent a clearly expressed contrary intent, it is appropriate to use uncontrolled emissions to establish an existing facility's "baseline" for purposes of the rule in question. The concept of implementing "Just Enough Control Technology" is equally unacceptable in both cases. Additionally, Mr. Myers' letter states that "many such vents are 'grandfathered' and pre-date the permit requirements and some vents pre-date the agency itself." This point is irrelevant for purposes of the vent gas rule, which by its terms addresses all existing sources for the purpose of requiring such sources to implement RACT, regardless of their permitted status, if uncontrolled emissions exceeded the emissions limitations found in Regulation V. In support of this, the hearing record pertaining to the latest adoption of the vent gas rule addresses one commenter's suggestion that now or modified facilities that have gone through the TACB permitting process be exempted from Regulation V, by noting that: Regulation V and ozone control strategies involve retrofit controls based on technological advances and reduction requirements which may go beyond requirements that exist at the time a permit was issued (see Texas Air Control Board Public Hearing Record, August 15, 16, and 17, 1989, Regulation V Evaluation and Recommendation, page 11). It is clear from the hearing record that the intent of Regulation V was that it be applied to all sources. It should also be noted that if the rule sought to treat some sources as being grandfathered, the rule would have had to define the scope of such a grandfathering provision, which it does not. The intent of Rule 115.127 to address all existing sources is consistent with the intent of Regulation V generally. Accordingly, it in the opinion of the Legal Division that sampling for air contaminants for purposes of determining the applicability of the exemption be conducted upstream of any control equipment, and that Rule 115.127 applies to grandfathered facilities as well as those facilities which were previously permitted. cc: Mr. James D. Braddock, Director, Legal Division